### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Sep te m be r 10 , 20 09 Ses si on

JO E STRAW THE R v. STAT E OF TENNE SSEE

Appeal f rom the Circ uit Court for Rutherford Coun ty No. F -59338 Don R. Ash, Judge

No. M2008- 00331-CCA -R3-P C - F iled Dece m ber 17, 2009

Petitioner, J oe Strawther, pled g uilty to ag g ravated robber y and attempted ag g ravat ed ro b b er y in Rutherford County in exchang e for an effect i v e ei ght-y ear sentenc e. Petitioner filed a motion for post-conviction re lief. Afte r a he aring
, the pos t-conviction court denied re lief. Petitioner appe als the denial of the petition. Howeve r, the issue raised by Petitioner on appea l was not raised in his petition for post-conviction re lief and, the ref ore, is not proper ly befor e this Court. The Petitioner h as failed to show that he rec eived ineffe ctive assistance of counsel or that his g ui l t y p l ea s we re enter ed involuntarily . Acc ording ly , the judg ment of the post-c onviction court is aff irmed.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court is Aff irm ed.

J E R R Y L

. S M I T H , J
., delivere d the opinion of the court, in which N O R M A M C G E E O G L E and J .C. M C L I N , J J ., joined.

Russ Eag le, Murfr eesbor o, Tenne ssee, f or the a ppellant, J oe Strawthe r.

Robert E. Cooper, J r., Attorney Gene ral and Reporter ; Rache l E. Wil lis, Assistant Attorney Gene ral; Wil liam C. Whit esel l
, J r. , District Attorney Gene ral, and Trevor H. L y nch, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP INION

Factual Back

ground

The rec ord on appea l is scant. Fr om the transcr ipt of the g uilty plea, it appea rs that on May 1 1, 2006, Petitioner pled guilty to the agg ravated robbery of a Ramada I nn in Mu rfreesbor o and an attempted ag g ravated robber y of a Golden Gallon store in Smy rna. I n exchang e for the g uilty pleas,

T h e i n d i c t m e n t s a n d j u d g m e n t f o r m s d o n o t a p p e a r i n t h e r e c o r d o n a p p e a l

. 1Petitioner was sentenc ed to eig ht y ear s for the ag g rava ted robber

y conviction and five y ear s for the attempted ag g ravat ed ro bbery conviction. The sentenc es wer e order ed to run concur rently
, and Petitioner was sente nced a s a Rang e I , standard of fende r.

The fa cts that g ave r ise to the g uilty plea we re summar ized at the plea he aring as follows:

Detec tive Duke [of the Smy rna Police Depa

rtment] respo n d ed to a robber y at the Golden Gallon, made contac t with a Ms. Pry or who was t h e clerk. Ms. Pry or informed him that a black male with a paper bag over his hand approa ched her at the
reg ister and order ed her to g ive [hi m] money that was in the draw er. Ms. Pry or then
y elled for Mr. Davis, who is her supervisor, that she was being robbed and hit the panic button. The subject then ran out of the store. Mr. Davis followed and observe d the suspect g et into the passeng er door of a compac t pickup truck driven by another male black. The tag ap p ea red to be PGM 011 or PGM 811. The suspects wer e unable to g et any

thing from the store and left. T h at was on Aug ust 8
, 2005. On t h Aug ust 9
, 2005, Detec tive J ohn J ones would testify that he responde d to a robber y t h
at the Ramada I nn hotel 1855 South Church in ref ere nce to a robber

y

. Made contac t with the vi ctim, a Kathy Durham. Ms. Durha m said that there w as a bla ck male, 5 foot 11, thin build, wea

ring a blue shirt, fade d jeans, approac hed her and asked for

an i ce bucket. Stated that he was in Room 181 and was waiting for a pizz a. S h e beca me suspicious beca

use there was no room 181. He later returne d and produce d

a brown paper bag over his hand and stated that he wanted t h e m o n ey

. S he
appar ently was try ing to g et the money

. He beca me ag itated and he struck her in the head with the hand that had the paper bag over it and then took the cash draw er and

ran outside with it. Then acc ording to State’s proof was later seen by the witnesses who had testified ear lier this morning
, Mr. Moore, with the money box in his hand. And then come into contac t with another black male who the St ate would say was Br aun J ones who has earlier pled g uilty and agr eed to testify

. That t he poli ce then

re s p ond and they come into contac t with the two co-de fenda nts who say that they

wer e out of g as. That they g o back to the truck wher e they say that they wer e out of
g as and discovere d it’s the s ame truck that was use d i n the previous robber y

. And they place them under arr est. They do t ake statements from the co-de fenda nt in which he admits his involvement in both robber ies and does implicate the defe ndant

as the one who actua lly went in and did the attempted robber y and the robber

y while Mr. J ones wa ited outside.

Petitioner filed a pro se petition for post-conviction relief on October 31, 2006. I n that petition, Petitioner claimed: (1) he rec eived ineffe ctive assi s t an ce of counsel; (2) his convictions

wer e based on the use of a coer ced confe ssion; and (3) his convictions wer e based on the failure of the prosec ution to disclose evidenc e favor able to the Petitioner. Petitioner arg ued that he rec eived ineffe ctive assistance of counsel beca use counsel: (1) allowed the prosec utor to use a co-de fenda nt’s

coer ced confe ssion; (2) failed to obtain the videotapes from the police car s; and (3) failed to discover that an ey ewitness did not appea r in court in re sponse to a subpoena

.

-2-The post-conviction court held a hear ing on the petition on May 11, 2008. At the hear ing,

Petitioner tes t ified that trial counsel’s repr esenta tion was not “to the fullest.” Specifica lly
, he

c o mp la in e d th a

t tr ial counsel incorre ctly informed him that his out-of-state convictions could be used
to enhanc e his sentenc es and that he could be sentenc ed up to forty -five y ear s as a Rang e I I I
, car eer offe nder. Petitioner testified that this incorre ct information from trial counsel led him to acc ept the
g uilty plea offe r. Petitioner asser ted that if he had been prese nted with the true scena rio, that he was only fac ing thirty y ears as a Rang e I I
, multipl e offe nder, he “would have took [si c] it to trial.” Petitioner claimed that trial counsel’s “ boss man” came with him and pressured him to acc ept t he plea a g ree ment.

Petitioner al s o claimed that trial counsel did not adequately investigate the case s. Specifica lly
, Petitioner felt that trial counsel should have known that the victim in the Golden Gallon

case failed to appea

r afte r three subpoenas and that trial counsel should have secur ed the videotapes from the police car s. Petitioner insisted that the videotapes would establish innocenc e beca use the victim of the Ramada I nn robber y could not identify him as the perpe t rator. Finally
, Petitioner informed the trial court that trial counsel should have investigated to deter mine whether the statements of the c o-def

endant we re c oerc ed.

On cross-e x amination, Petitioner admitted that he had no proof that the ey ewitness from the Ramada Inn robber

y failed to a

ppear in court af

ter a subpoena. Petit ioner acknowledg ed that trial counsel met with hi m s ever al t imes prior to the entry of t he guilty plea and that trial counsel filed

a motion to suppress the e vidence . Petitioner also admitted that trial counsel notified him that the police depar

tment claimed that no police videotape exis ted “in rela tion to the Ramada I nn robber y .”

Trial counsel testified at the hear ing that he had been prac ticing law since 1990 and the first
seven y ear s of his prac tice we re e x clusively devoted to cr iminal law.

Trial counsel explained that he g ave Petitioner a docu m en t explaining the rang e of
p u n i s h ment that he could rec eive if convicted of all of the char g es. Trial counsel deter mi n ed t h e possible rang es of punishment from the enhanc ement noti ce fil ed by the S tate. Acc ording to trial counsel he “ce rtainly

never advised [ Petitioner] that [he] thought [ Petitioner] would g et 45 or 40”
y ear s. Moreove r, trial counsel testified that no one from his office informed Petitioner that he would have to se rve 60% of his sentenc e.

I n re gar d t o investigation of the case , trial counsel felt that he had adequate time to investiga te the case and was unawa re of any witnesses that failed t o ap p ea r afte r a subpoena. Fur ther, trial counsel informed the post-conviction court that he attempted to obtain the videotapes from the police but was informed that no such tapes exis ted. Trial counsel al s o fi led a motion to preve nt the use of c o-def

endant’ s statement from be ing use d ag ainst Petiti oner a t trial.

Acc ording to trial counsel, Petitioner knew what he was doing when he pled g uilty

. Trial counsel fe lt that after r ejec ting a n initial offer of

five y ear s and hea

ring the evidenc e at the motion to suppress, Petitioner cha ng ed his mind and wante d to take the plea offe r for eig ht y ear s.

-3-At the conclusion of the post-conviction hear ing, the post-conviction court deter mined that Petitioner was not c redible and that he had “neve r seen an attorney do a better job keeping up with his time and showing what he did on behalf of a client.” After revie wing th e ev idence
, the postconviction court found that trial counsel’s perf ormanc e was not de ficient and did not prejudice the defe nse. I n an order fi l ed on May 18, 2007, the post-conviction court dismiss ed the petition for relief

. I n that order
, the post-conviction court specific ally found: (1) trial counsel had no basis to file

a motion to suppress the co-de fenda nt’s statement; (2) the proof was overw helming that trial counsel made ever

y attempt to secur e th e v i d eo t ap es from the police car s; (3) there was no proof that a witness failed to a

ppear afte r a subpoe na; and ( 4) Petitioner’s testimony was not cr edible.

Petitioner filed a notice of appe al on J anuar y 30, 2008. On that same date, Petitioner filed

a “Motion to A mend Orde r.” I n the motion, Petitioner arg ued that he never rec eived a copy of the final order and asked the post-conviction court to reissue the final order in the post-conviction case for October 5, 2007, in order for his notice of appea l to be timely

. I n response , the trial court enter ed an orde r on F ebrua

ry 6, 2008, waiving the timely filing of the notice of

appea l.

The State arg ues in its brief that Petitioner has waived all issues fo r ap p ea l d u e to the untimely filing of the notice of appea l and that the trial court was without jurisdiction to w aive the timely filing of the notice. The State is corr ect in its asser tion that “[t] he appropr iate appellate court shall be the court that deter mines whether such a waiver [of the timely filing of the notice of appea l] is in the interest of justice.” Tenn. R. App. P. 4(a)

. Howeve r, in conjunction with other proce dural matters, thi s Court issued an order concluding that the timely filing of the not ice of appea l should be waived i n t h i s case in the interest of justice. There fore
, we will revie w Petitioner’s issues
prese nted on appe al.

Analysis Post-Conviction Standard of Review

The post-conviction court’s finding s of fac t are conclusive o n appeal unless the evidenc e preponde rate s otherwise. See State v. Burns
, 6 S.W .3d 453, 461 (Tenn. 1999). During our revie w of the issues raised, we will aff ord those finding s of fac t the weig ht of a jury verdic t, and this Court is bound by the post-conviction court’s finding s unless t h e ev i d ence in the rec ord preponde rate s ag ainst those finding s. See Henley v. State
, 960 S.W .2d 572, 578 (Tenn. 1997); Alley v. State
, 958 S.W .2d 138, 147 (Tenn. Crim. App. 1997). This Court may not rew eig h or re- evalua te the evidenc e, nor subs titute its infere nces for t hose drawn by the pos t-conviction court. See State v. Honeycutt
, 54 S.W .3d 762, 766 (Tenn. 2001). Howeve r, the post-conviction court’s conclusions of law are revie wed under a purely de novo standard with no presumption of corr ectne ss. See Shields v. State
, 40 S.W .3d 450, 458 (Tenn. 2001)

. Ineffec tive Assistance of Counsel

When a petitioner seeks post-conviction relief on the basis o f i n eff ective assistance of counsel, the p etitioner bear s the burden of showing that (a) the service s rende red by trial counsel

-4-wer e defic ient and (b) that the defic ient perf o rm an ce was prejudicia l. See Powers v. State
, 942 S.W .2d 551, 558 (Tenn. Crim. App. 1 9 9 6 ). I n order to demonstrate defic ient perf ormanc e, the petitioner must show that the service s rende red or the advice g iven was below “the rang e of competenc e demande d of attorney s in criminal case s.” Baxter v. Rose
, 523 S.W .2d 930, 936 (Tenn. 1975). I n order to demonstrate prejudice
, the petitioner must show that th er e i s a rea sonable probability that, but fo r co u n s el ’s defic ient perf ormanc e, the result of the proce eding would have been differ ent. See Strickland v. W ashington
, 466 U.S. 668, 694 (1984). “B eca use a petitioner must establish both prong s of the test to preva il on a claim of ineffe ctive assistance of counsel, failure to prove either deficient performanc e or re s u l t i n g prejudice provides a sufficie nt basis to deny relief on the claim.” Henley

v. State , 960 S.W .2d 572, 580 (Tenn. 1997)

.

As noted above, this Court will aff ord the p o s t -convic tion court’s fac tual finding s a presumption of correc tness, rende ring them conclusiv e o n appea l unless the record preponder ates ag ainst the court’s finding s. See id. at 578. Howeve r, our supreme court has “dete rmined that issues of defic ient perf

ormanc e by counsel and possible prejudice to the defe nse are mix ed questions of law and fac t

. . . ; thus, [appellate] revie w of [t hese issue s ] i s d e n o v o ” with no presumption of

corr ectne ss. Burns , 6 S.W .3d at 461.

Fur thermore
, on claims of ineffe ctive assistance of counsel, the pe titioner is not entitl ed to the bene fit of hindsight. See A dkins v. State
, 911 S.W .2d 334, 347 (Tenn. 1994) . This Court may
not second- g uess a rea sonably -base d trial strateg y , and we cannot g rant relief based on a sound, but

unsucce ssful, tactica l de cision made during the course of the proce eding s. See id. Howeve r, such defe renc e to the tactica l decisions of counsel applies only if counsel makes those decisions afte r adequate prepa

ration for the case

. See Cooper v. State
, 847 S

. W

. 2 d 5 2 1
, 528 (Tenn. Crim. App. 1992).

Once a guilty plea has been entere d, eff ec t iveness of counsel is rele vant onl y to the ex tent t h at i t aff ects the voluntariness of the plea. I n this respe ct, such claims of ineffe ctive assi s t an ce

nece ssarily implicate the principle that g uilty pleas be voluntarily and intelligently made. See Hill

v. Lockhart
, 474 U.S. 52, 56 (1985) (citing North Carolina v

. Alford
, 400 U.S. 25, 31 (1970))

. As stated above, in order to succe ssfully cha l l enge the eff ectivene ss of counsel, Petitioner must demonstrate that counsel’s repr esenta tion fell below the rang e of competenc e demande d of attorney s in criminal case s. See Baxter
, 523 S.W .2d at 936. Under Strickland v. W ashington
, 466 U.S. 668, 694 (1984), Petitioner must establish: ( 1) defic ient repr esenta tion a nd (2) prejudice resulting from the def iciency

. Howeve r, in the context of a g uilty plea, to satisfy

the sec ond prong of Strickland
, Petitioner must show that “ther e is a rea sonable probability that, but for counsel’s err ors, he would

n o t h ave pleade d g uilty and would have insisted on g oing to trial.” Hill
, 474 U.S. at 59; see als o W alton v. State , 966 S.W .2d 54, 55 (Tenn. Crim. App. 1997)

.

When analy

zing a g uilty plea, we look to the fede ral standard announce d in Boyk in v. Alabama
, 395 U.S. 238 (1969), and the State standard se t out in State v. Mack ey , 553 S.W .2d 337 (Tenn. 1977). State v. Pettus
, 986 S.W .2d 540, 542 (T en n

. 1 9 9 9 ). I n Boyk in , the United States Supreme Court held that there must be an aff irmative showing in the trial court that a g uilty plea was

-5-voluntarily and knowing ly g iven befor e it can be acc epted. Boyk in , 395 U.S. at 242. Simi larly
, our Tenne ssee Supreme Court in Mack ey require d an aff

irmative showing of a voluntary and knowing
g uilty plea, namely
, that the defe ndant has been made awa re of the signific ant conseque nces of such a plea

. Pettus , 986 S.W .2d at 542.

A plea is not “voluntary ” if it results from ignor ance , mis u nderstanding
, coer cion, inducements, or thr eats. Blankenship v. State
, 858 S.W .2d 897, 904 (Tenn. 1993). The tr ial court must determine if the g uilty plea is “know ing” by questioning the defe ndant t o make sure he fully understands the plea a

nd its conseque nces. Pettus , 986 S.W .2d at 542; Blankenship , 858 S .W .2d at 904.

I n his brief, Petitioner claims that trial counsel improperly informed him about the rang e of punishment he could rec eive if convicted of all the char g es that he fac ed. He contends the improper information imparted to Petitioner by trial counsel and his “boss man” led him to acc ept a plea rathe r than proce ed with t ri al

. P etitioner claims that this prejudice d the defe nse and that the ineffe ctive assistance of counsel led t o an i n v oluntary g uilty plea. The State, on the other hand, notes that Petitioner failed to raise this a lleg ation in a ny of his pe titions for post-conviction re lief and a rg ues that the issue is waived f

or appe llate re view.

We ag ree with the State. I neff ective assistance of counsel is a single claim for relief under the Post-Convi ction Procedure Ac t even though the violation may be proved by multipl e acts or

o m i s s i ons on the part of counsel. Erika Louise Bunkley Patrick v. State
, No. W2004-02217-CCA-R3-PC, 2006 WL 211824, at *10 (Tenn. Crim. App., at J ackson, J an. 24, 2006) (citing Thompson v. State
, 958 S.W .2d 156, 161 (Te n n

. Crim. App. 1997); Cone v. State
, 927 S.W .2d 579, 581-82 (Tenn. Crim. App. 1995)). Thus, all fac tual alleg ations must be presente d in

one claim. See T.C.A. § 40-30-106( d). A petitioner may not re l i t i gate a claim of ineffe ctive assistance of counsel “by prese nting new and differ ent fac tual alleg ations” on appea l. Erika Louise Bunkley Patrick
, 2006 WL 211824, at *10 (citing Thompson
, 958 S.W .2d at 1 61; Roger Clayton Davis v. State
, No. 03C01-9902-CR-00076, 2000 WL 21307 (Tenn. Crim. App., at Knoxvi lle, J an. 14, 2000), per m. app. denied
, (Tenn. Sept. 5, 2000)); see also Melv in Cofer v. Stat e , No. W 2006- 00631-CCA-R3-PC, 2007 WL 2781718, at *10. I t appea rs that Petiti o n er’ s additional fac tual alleg ation supporting his claim of ineffe ctive assistance of counsel was not raised in his petition for post-conviction relief

. I nstead, this claim is now made in response to t es t i m o n y from Petitioner
g iven at the evidentiar

y hear ing. Howeve r, the post-conviction court did not make any finding s of fac t o n t h e fa ct u al alleg ations Petitioner now raises. Erika Louise Bunkley Patrick
, 2006 WL 211824, at *10 (citing Tenn. R. App. P. 36(a) (holding th at no “re lief may be g rante d in
contravention of the province of the trier of fac t.”)). Consequently
, this issue has been waived. See Cone , 747 S.W .2d at 357.

-6-Conclusion

For the fore g oing r easons, the judg ment of the post-c onviction court is aff irmed.

___________________________________ J ERRY L . SMI TH, JUDGE

-7-